JUNE 2004 TSACHECKSET NEWSLETTER OF THE TEXAS SOCIETY OF ARCHITECTS, VOLUME 32, ISSUE 3

PRESIDENT’S MESSAGE CONTENTS Membership News ...... 2 Handbook Corrections ...... 2 Aligning Values Avoids Clash of Cultures TAC Report ...... 3 When I was 15, I envisioned remarkably like some project requirements we’ve all seen Legislative Update ...... 4 myself as an architect. And in the lately, don’t you think? TBAE Q&A ...... 4 30-odd years since, I must admit For the past 100 years, more or less, the core of the archi- Landreth to Chair TBAE ...... 5 that I feel extraordinarily lucky. tectural curriculum has been the design studio, where percep- Convention Memo ...... 6 In every year since that youthful tion, design theory, process, critical thinking, collaboration, Board Report ...... 7 epiphany, I have worked part- communication, and a plethora of other skills are delivered. time or full-time in an architect’s The form of the studio does not have precise edges: problems Briefs ...... 7 office, enjoying it immensely. have tremendous variation, approaches and ensembles are Professional Insight ...... 8 In the early years, my mentors restricted only by creativity, faculty have varied capabilities, From the Archives ...... 8 were quick to share that “the and time means nothing unless it’s running out. Member Spotlight ...... 9 schools don’t teach enough”; In 2002, the American Institute of Architecture Students JEFF POTTER that the offi ce environment has presented the fi ndings of its AIAS Studio Culture Task Force. 2004 TSA President to supplement the body of knowl- In the report, titled “The Redesign of Studio Culture,” AIAS Longview edge required for practice. And espoused the notion that the studio must become a more FYI later, armed with a minty fresh humane place, where a skill set is acquired that not only sup- Offi cer Nominations Due June 15 license, I had ample opportunity to step through to the other ports such an idea, but serves to elevate practice as well. Five side (vaguely like passing through the “time/space passage” values were presented as defi ning this pedagogy—optimism, The deadline is June 15 for receiv- scene in 2001: A Space Odyssey) and do some trash-talking respect, collaboration, engagement, and innovation. To borrow ing nominations for TSA’s 2005 of my own. from the report, “Studio culture should promote: design process offi cers. Please contact Becca But I believe that I have always known better. The aca- as well as product; leadership development, collaboration, Floyd at TSA for information, or demic mission is an almost impossible scenario. Juxtaposing community engagement and service, the importance of people, visit www.texasarchitect.org. the body of knowledge (that continues to grow exponentially) clients, users, communities, and society in design decisions; against schedule and nomenclature, balancing the needs of inter-disciplinary and cross-disciplinary learning; confi dence society with the demands of technology, managing enroll- without arrogance; oral, written, visual, and graphic commu- CALENDAR ments, developing centered graduates (and faculty)—all this in a funding environment that is, shall we say, in fl ux. Sounds “CULTURES” CONTINUED ON PAGE 7 JUNE 4 2004 TSA Design Awards LEGAL MATTERS entry deadline 2004 TSA Honor Awards entry deadline Are Architects and Contractors Liable

J U N E 1 5 under ADA for Inaccessible Facilities? 2005 TSA offi cer nomina- tions deadline BY AARON SILBERMAN architects or construction contractors who design and/or build the facilities. In the opinion of this author, a logical reading J U N E 1 6 Adapted from “Are Architects and Contractors Potentially of the ADA, taken as a whole, reveals that architects and con- ARE Scholoarship deadline Liable under the American With Disabilities Act for the Design struction contractors cannot be held liable if they themselves (see page 5) & Construction of Inaccessible Facilities?” by Aaron Silberman do not own or operate the inaccessible facilities. originally published in Construct!, Volume 13, No. 2 Winter A number of federal courts, including two federal circuit J U L Y 5 2004. © 2004 by the American Bar Association. Reprinted courts of appeals, have considered the issue of who is liable TSA offi ce closed (Indepen- with permission. under Title III of the ADA and have reached different conclu- dence Day observance) sions. Some courts have considered the issue specifi cally with Title III of the Americans with Disabilities Act of 1990 (ADA) regard to architects and contractors, while others have evalu- J U L Y 2 9 - 3 1 prohibits discrimination against persons with disabilities in the ated the potential liability of other entities, such as franchisors. TSA Summer Board Meeting design and construction of certain facilities. It is clear that Still other courts have examined the issue of liability under Portland, OR owners and operators of inaccessible facilities are liable under ADA, but it is less clear whether liability also extends to the “ADA” CONTINUED ON PAGE 10 MEMBERSHIP NEWS

NEW ARCHITECT MEMBERS J U N E 2 0 0 4 VOLUME 32, ISSUE 3 AUSTIN Tae K. Choi; Hans N. Holland, Nic Holland Architect; John L. Rishling, UT Austin TSA CheckSet is published six times per year by the TTexasexas Society of DALLAS Jamie G. Barnes, work architecture; R. Jeff Cain, Azimuth Architecture; Michael F. Hall, SHW Group; Architects (TSA), 816 Congress Ave., Suite 970, Austin, Texas 78701, Philip A. Jabour, Kaplan; James D. Lee, Brinker International; Merrily K. Moss, HH Architects; Christian P. www.texasarchitect.org. TSA is the offi cial TexasTexas state organization of Owens, SHW Group; Grant E. Warner, CSD Architects the American Institute of Architects (AIA). Copyright 2004 by the Texas HOUSTON B. Todd Arenz; James W. Brandin; William H. Coltzer, Jr., Zero Six Consulting; James A. Gersch, Society of Architects. PDG Architects; John W. Ridington, EDI Architecture; Jonathan M. Sturt, Ziegler Cooper Architects LOWER RIO GRANDE VALLEY Viviana Frank-Franco, Frank Architects TSA Mission Statement: To be the voice of the Texas architec- SAN ANTONIO Peer Gerlach, Parsons; Tim Palomera, III, City of San Antonio tural profession uniting AIA members to advance the profes- sion, serve society, and improve the built environment. NEW ASSOCIATE MEMBERS AMARILLO Dana Ann Williams, David Lancaster, Hon. AIA AUSTIN Bahareh Amos, Laurie Smith Design Associates; John Cassidy Cheesar, Black & Vernooy Architects; EXECUTIVE VICE PRESIDENT William L. Hodge, Webber + Hanzlik [email protected] DALLAS Harper L. Hicks, Corgan Associates; Gaurang M. Sheth, HKS, Inc. Gayle Pickering F O R T W O R T H Patrick F. McCrea; Robert C. Rinker, Carter & Burgess; Andrew D. Vick, Carter & Burgess; SENIOR DIRECTOR Bryan Wren [email protected] HOUSTON Mark J. Atkins, Jackson & Ryan Architects; Rame S. Hruska, Planning Design Research Corpora- tion; Gunal M. Kivaner, SCS Design & Construction; Daniel Ramos, Gossen Livingston Associates; Diego J. Yvonne Castillo Rozo, Randall-Porterfi eld Architects GENERAL COUNSEL [email protected] LUBBOCK Jon K. Fisher, BGR Architects/Engineers SAN ANTONIO Daniel E. Curry; William Sam Poland Judey Dozeto SOUTHEAST TEXAS David Malain, Architectural Alliance TEXAS ARCHITECT AASSOCIATESSOCIATE PPUBLISHERUBLISHER [email protected] NEW POSITIONS Becca Floyd CORPUS CHRISTI WKMC Architects: Daniel Talley, associate EXECUTIVE ASSISTANT DALLAS Jonathan Bailey Associates: Mark Stewart, vice president; HKS Inc.: Angela Lee, senior associate and bfl [email protected] vice president; Page Southerland Page: John Seely, healthcare designer

Adam Fortner E L P A S O Parkhill, Smith & Cooper: William “Bill” Zorn TEXAS ARCHITECT ART DIRECTOR HOUSTON RTKL Associates: Richard Leyendecker, senior project architect and associate v.p.; Turner Partners [email protected] Architecture: Tom Stovall, Jerry Daniels; Watkins Hamilton Ross Architects: Charles Griffi n, senior principal

Tammie Peschka FIRM NEWS ADMINISTRATIVE ASSISTANT FKP Architects has relocated its offi ces in Dallas to 3535 Travis Street, Suite 260, Dallas, 75204. The phone [email protected] and fax numbers will remain the same. Morgan Knicely IT MANAGER DEATHS [email protected] Walter Wisznia, 79. Mr. Wisznia helped shape the city of Corpus Christi with work that included the Nueces

Joe McGuire County Courthouse, the Wells Fargo Towers I, II, and III, and the Driscoll Children’s Hospital. DIRECTOR OF ACCOUNTING Chartier Newton, 61. After earning a Bachelor of Architecture degree from Texas A&M and a Master of Archi- [email protected] tecture from Cranbrook, Mr. Newton taught architecture at A&M, Rice University, and the University of Texas at Austin, and in 1981 began his own architecture fi rm in Austin. Among his accomplishments was Stephen Sharpe his insistence that a proposed bridge along Loop 360 spanning Lake Austin enhance the beauty of the site. TEXAS ARCHITECT EEDITORDITOR [email protected] His foresight resulted in one of Austin’s most distinguished landmarks.

Chellie Thompson MARKETING COORDINATOR 2004 TSA Handbook Corrections [email protected] FIRM LISTINGS Ark Tectonics (FTW) 6111 North Beach St #1132, Fort Worth 76137 ...... 817-652-0123 Federico Associates (FTW) 11650 Cambria Dr, Fort Worth 76008 ...... 817-244-9113 Story suggestions and letters to the editor are welcome. Use Noack.Little Architects (AUS) 2424 South Lamar #B, Austin 78704 ...... 512-851-1900, f 851-1901 will be determined by the TSA Executive Vice President and Perkins & Will (HOU) 3815 Montrose Blvd #210, Houston 77006 ...... 713-528-3334, f 528-3339 Patrick F. Reiley, Architect (SA) 7610 Field Ct, San Antonio 78249 ...... 210-696-4643 the editor. All submittals are subject to editing for clarity and length. MEMBER LISTINGS Beets, Raymond L. Jr (1) (HOU) Perkins & Will, 3815 Montrose Blvd #210, Houston 77006 ...... 713-528-3334, f 528-3339 Blan, Richard C. (1) (HOU) 12206 Mossycup Lane, Houston 77024 ...... 713-467-6454 Questions and Submittals: Dominguez, Steven (2) (ELP) Moore Nordell Kroeger Architects, 7170 Westwind Dr #105, [email protected] El Paso 79912 ...... 915-587-8023, f 587-0985 Little, Clayton (1) (AUS) Noack.Little Architects, 2424 South Lamar #B, Austin 78704 ...... 512-851-1900, f 851-1901 Moorhead, Gerald L. FAIA (1) (HOU) Bailey Architects, 1755 West Main Ave, Houston 77098 ...... 713-529-6905, f 524-3947 Noack, Chris M. (1) (AUS) Noack.Little Architects, 2424 South Lamar #B, Austin 78704 ...... 512-851-1900, f 851-1901 Schaban-Maurer, Basil PhD (2) (FTW) 6111 N. Beach #1132, Fort Worth 76137 ...... 817-652-0123

2 C H E C K S E T J U N E 2 0 0 4 T A C R E P O R T

Robert Martineck; Brian McFarlane; Robert Meckfessel; John Schrader; Timothy As of May 7, 2004 Solohubow; Richard Solomon; Scott Sower; Craig Stockwell; Keith Taylor; David Vincent; James Wiginton; Andrew Zekany F O R T W O R T H Robert Adams; James C H A P T E R G O A L A M T % 1 0 0 % ABILENE $3,000 $1,940 65% Kiraly; Elaine Petrus, Hon. TSA; Emery Young LOWER RIO GRANDE VALLEY Luis AMARILLO $2,500 $2,845 114% Figueroa; Eduardo Vela LUBBOCK Joseph McKay NORTHEAST TEXAS Brice Davis; AUSTIN $20,000 $4,780 24% Ted Estep; Steven Harris; Barton Robinett; Phillip Thacker SAN ANTONIO Diana BRAZOS $6,500 $4.590 71% Gonzalez; Lloyd Jary, FAIA; William Reeves SOUTHEAST TEXAS Milton Bell W E S T CORPUS CHRISTI $4,400 $2,130 48% T E X A S Daniel Hart WICHITA FALLS Jackie William Lebow DALLAS $60,000 $51,797 86% NEW CENTURY CLUB MEMBERS ($100-249) E L P A S O $2,500 $740 30% A U S T I N Heather McKinney BRAZOS Jason Kinnard; Elizabeth Price, Assoc. AIA; F O R T W O R T H $12,000 $6,752 56% Michael Record CORPUS CHRISTI Ken Bridges; John Dykema; B. Mark Luddeke; HOUSTON $40,800 $2,090 5% Consuelo Rivera; Jonathan Eric Rivera DALLAS Ricardo Bargas; David Botello; LRGV $2,400 $1,097 46% Michael Brenchley; Edward Brooks; Robert Bullis; Richard Carrell; Jeff Carter; LUBBOCK $4,000 $4,310 108% Ross Conway; Walter Curry; Henry D’Elena; Steve Danielson; Harold Derbonne; NORTHEAST TEXAS $6,000 $3,230 54% Gary DeVries; John Dreiling; Allison Eccleston; Jeanne Erickson; Richard Ferrara; SAN ANTONIO $15,000 $4,795 32% Richard Franz; Jeffrey Good; Joanna Hampton; Johnny Hopper; Michael David SOUTHEAST TEXAS $2,500 $2,070 83% Hurd; Michael Lubben; Carl Malcolm; James Manning; Robert Swain Mayo; Rich- WACO $2,500 $0 0% ard Lee Myers; James Patterson; Larry Phillips; Tim Poole; Ronald Paul Poovey; W E S T T E X A S $2,000 $270 14% Shea Rampy; David Robinson; Jonathan Rollins; Mark Schantz; Kent Shields; Karl WICHITA FALLS $2,000 $620 31% Sonnier; Helen Stewart; Honorio Villanueva; James Watkins; Edward Yost F O R T WORTH Suzie Adams, Hon. AIA; Stephen Darrow; David Lee; Randall Walton TOTAL $188,100 $94,056 50% HOUSTON Caryn Mims LOWER RIO GRANDE VALLEY Dan Ogden L U B B O C K Mike Cartwright; Edwin Davis; Clayton Yeager NORTHEAST TEXAS Louis Gohmert; Send your personal TAC check to: Charles Van Burkleo SAN ANTONIO Milton Babbitt; Lewis Fisher; Ted Flato, FAIA; Texas Architects Committee, 816 Congress Ave., Suite 970, Austin, Texas 78701 John Graves; Harvey Marmon, FAIA; Gregory Papay; Sue Ann Pemberton-Haugh; Madeline Slay WICHITA FALLS Richard Higgins PLATINUM CENTURY CLUB MEMBERS ($1,000 AND MORE) AUSTIN Ponciano Morales; Peter Pfeiffer, FAIA BRAZOS Timothy Donathen, John Only Greer, FAIA, Jim Singleton DALLAS C. Joe Buskuhl, FAIA; Nunzio DeSantis; H. Ralph Hawkins, FAIA; Mark Humphreys; David Lind; Hardy McCullah; Donald Powell; Ronald Skaggs, FAIA; Mark Watford F O R T W O R T H Eric Hahnfeld; Chris- topher Huckabee; Alan Magee SOUTHEAST TEXAS Dohn LaBiche

GOLD CENTURY CLUB MEMBERS ($500-999) AMARILLO Thomas Lavin AUSTIN Tommy Cowan, FAIA CORPUS CHRISTI Bill Wilson, FAIA DALLAS John Craig Beale, FAIA; Donald Carry; Edward Chauviere; Carol Dennis; Mark Dilworth; David Farrell; Duncan Fulton, FAIA; Francisco Gonzalez; R. Lawrence Good, FAIA; Ronald Gover; John Hafker; Thomas Harvey; Ronald Harwick; Gray Henry; James Housewright; Daniel Jeakins; Stephen Johns; Michael Moran; Dan Noble; Michael Parrish; Joseph Patti; Karen Quick; Craig Reynolds; James Rimelspach; Richard Robinson; Joseph Sprague, FAIA; Jeffrey Stouffer; Bryce Weigand, FAIA; Michael Wells; Stephen Winslow; J. Mark Wolf E L P A S O Edward McCormick F O R T W O R T H Randall Gideon, FAIA; Charles Nixon HOUSTON Kurt Hull; Martha Seng NORTHEAST TEXAS Michael Butler; Robert Eubanks; Jeffery Potter SAN ANTONIO Debra Dockery; Michael Imbimbo

SILVER CENTURY CLUB MEMBERS ($250-499) ABILENE William Gollihar; Jack Harkins; Tim McClarty; Gary Pullin; Ruppert Rangel; James Tittle, FAIA; Charles Weatherl AMARILLO Charles Lynch; Russell Megert; Kent Pargé; James Sims AUSTIN Robert Gillogly; John Nyfeler, FAIA; Charles York BRAZOS Elton Abbott; Charlie Burris; Larry Priesmeyer; Eva Read- Warden; CORPUS CHRISTI Elizabeth Chu Richter; David Richter, FAIA DALLAS Edward Abeyta; Michael Arbour; Michael Archer; Danny Babin; Noel Barrick; Robert Billingsley; Jeffrey Brown; David Alan Burriss; Tamara Chambless; Doug- las Compton; Lawrence Cosby; M. Teresa Davis; Kevin Glasscock; Roy Gunsolus; Susan Hanchey; Jeffrey Haven; D. Michael Hellinghausen; Kerry Hogue; Thomas Holt; Thomas Hooker; Mark Hults; John Hutchings; Michael Johnson; Phillip Jones; Scott Kanaga; W. Brian Keith; Ted Kollaja; Donald Kubala; Lisa Lamkin;

J U N E 2 0 0 4 CHECKSET 3 LEGISLATIVE UPDATE Consensus Eludes Special Session

Consensus, according to my dictionary, means The leadership in the House passed this bill in the name of “moving the “a collective opinion; general agreement.” The process forward,” meaning “the governor has threatened to veto our previous governor repeatedly said he would only call bill that didn’t fall short in revenue (because it included a payroll tax) so in a Special Session if there was consensus on an effort to keep things going and get something done before the 30 days a strategy for revamping Texas’ public school allotted, we’ll pass a bill that we know falls short in revenue and send it on fi nance system. But as this edition of CheckSet to the Senate to fi x.” As you may have gleaned from your local newspapers, was going to press on May 12 (more than half- the Senate didn’t receive this “punt” with open arms (more like the ball hit way through this 30-day Special Session), there them in the back of the head). Now it’s up to the Senate to solve the school appears to be no consensus, no agreement, and fi nance problem, which could mean a signifi cantly new tax structure to the no solution in sight. state of Texas. Meanwhile, elections are coming up in November. Senators At presstime, the House passed a bill to the no doubt will ask themselves: “Why should we vote for tax measures that YVONNE CASTILLO Senate that cuts property taxes (as promised) ultimately may be voted down in the House?” Justifi ably, they fear that the TSA General Counsel and attempts to make up the revenue to the opponents in their races will use that against them. Austin state by increasing sales tax; expands the sales So where are we headed? By the time you read this article, we may be tax base (don’t worry: architectural services were well into a second Special Session. I guess we could look on the bright side not affected); levies a one dollar tax on tickets to professional athletic events, and take some comfort in the fact that the hand-wringing going on at the amusement events, etc.; increases the cigarette tax by one dollar per pack; State Capitol tells us that legislators are truly concerned with the economic increases the cigar and smokeless tobacco tax; and leaves the franchise tax effects of taxing businesses. The not-so-bright side is that without decisions alone (i.e., doesn’t close the current loophole which allows partnerships to avoid being made, every tax scenario is still on the table for consideration. Stayed the tax). Unfortunately, these revenue-raising measures fail to make up for the informed and stay tuned… revenues lost with the property tax cuts—probably by about $1 billion.

T B A E Q & A State Regulations Outline Requirements for Interns

Q: What are the state requirements to work as an architectural intern? relating to design and construction documents. The Intern Development Training requirements also require training units in the areas of construction A: In order to obtain architectural registration by examination in Texas, an administration, management, and elective training units involving experience applicant must, in addition to other requirements, complete the TBAE’s in architecture, building construction, full-time teaching or research in an Intern Development Training requirement. An applicant may begin intern- NAAB-accredited professional degree program, or performing professional ship training only after successful completion of at least one of the following or community service. criteria: Generally, anyone who is not registered as an architect is prohibited • three years of a professional program accredited by the National Archi- from using a professional or business title that includes any form of the tectural Accreditation Board (NAAB) or a professional program outside of word “architect.” However, there is an exception for persons enrolled in the United States that is substantially equivalent to a NAAB-accredited the Intern Development Program (as administered by the National Council program; of Architectural Registration Boards), who may use the title “architectural • the third year of a four-year pre-professional degree program in architecture intern.” Once an applicant has completed her or his internship, the applicant acceptable for direct entry to a two-year NAAB-accredited professional may no longer use the title. master’s degree program; or More information about TBAE’s rules and regulations is available online • one year in an NAAB-accredited professional master’s degree program at www.tbae.state.tx.us. Additional information on NCARB’s Intern Develop- following receipt of a non-professional degree. ment Program is available at www.ncarb.org.

An applicant must earn credit for at least 700 training units to meet the Questions are answered by Scott Gibson, general counsel for the Texas state’s Intern Development Training requirement. (One training unit is equal Board of Architectural Examiners. If you have a question relating to to eight hours of acceptable experience.) TBAE rules specify the number state regulation of the architectural profession, please send an e-mail to of training units that must be earned within certain required subject areas. [email protected]. Of the total required training units, 350 units must be in specifi c subjects

4 C H E C K S E T J U N E 2 0 0 4 Landreth Appointed to Chair TBAE

Gov. Rick Perry’s offi ce announced in mid-May that Gordon Landreth of only three architect members instead of the Corpus Christi has been appointed the new chairman of the Texas Board four mandated by the Texas Legislature. While of Architectural Examiners. Landreth, who previously held the vice chair that defi cit will not disallow the board to carry position, succeeds Steven Ellinger of Abilene who has served as TBAE chair on its business, an appointment to fi ll the since the summer of 2000. empty architect slot is likely to be made in Ellinger’s term was to expire in January 2003, but was extended until the the near future. By law, nine board members Governor appointed his successor. In April, Ellinger was elected as regional comprise TBAE, with the seats mandated director to the board of the National Council of Architectural Registration to be held by four architects, one interior Boards. Following his election (the fi rst Texas architect elected to the NCARB designer, one landscape architect, and three board in at least 33 years), Ellinger requested that a successor be chosen public members, one of whom must be before he begins his NCARB service this month. physically disabled. However, the board has GORDON LANDRETH Reached for comment after the announcement, Landreth stated in an performed with eight members since 2002 when Virginia Roberts was killed e-mail message, “The Texas Board of Architectural Examiners is charged in an automobile accident. Just last month, Robert Kyle Garner of Amarillo with the responsibility of licensing and regulating the design professionals was appointed to fi ll the public member slot left vacant at Roberts’ death. of our great state. With that responsibility is the often misunderstood duty His term extends through January 2009. of protecting the health, safety and welfare of our citizens. While the TBAE Ellinger was appointed to the TBAE in 1997. Landreth was appointed in represents the three design professions (architecture, interior design and 2000 to fi ll the fi nal six months of a term for a seat vacated that summer by landscape architecture), the task of promoting these professions rests with John Only Greer, FAIA, of College Station. He was then re-appointed for a the fi ne professional organizations such as the Texas Society of Architects, full term (through January 2007) and was elected vice chair in 2001. Other the AIA, the Texas Association for Interior Design, and the American Society current members of the board are architects Peter Pfeiffer, FAIA, of Austin of Landscape Architects. Together we can create a better life for the citizens and R. Nolen Willis of Bellaire, landscape architect Diane Steinbrueck of of Texas and the world beyond.” Austin, interior designer Alan R. Lauck of Dallas, and public members Janet With Ellinger’s departure imminent, the regulatory board will be left with Parnell of Canadian and Anthony Trevino of Laredo.

ARE Scholarship Deadline is June 16

The spring deadline for TBAE’s semi-annual Architect Registration Examina- fi led jointly, the maximum gross adjusted income is $58,482. tion Financial Assistance Fund is June 16. The scholarship is a one-time It should be noted that new architects who have completed at least one reimbursement of $500 for taking the Architect Registration Examination. portion of the exam since September 1, 1999 are eligible to apply for the To qualify for the scholarship, applicants must: scholarship. Applicants can use the gross adjusted income of their federal · have resided in Texas for at least 12 months immediately preceding tax return for the year in which they are applying. For example, if applicants the date of application; completed the ARE in 2000 and are applying for the June 2004 scholarship, · have completed sections of the exam for which the combined fees they may use their 2000 gross adjusted income if it helps them meet the total at least $500; fi nancial requirements. · have been approved for examination by TBAE and paid all fees; The scholarship application is available on the TBAE Web site (www.tbae. · have not been disciplined or been the subject of a pending enforce- state.tx.us/active/arefaf_intro.html) oror contactcontact TBAETBAE toto requestrequest anan applicationapplication ment proceeding by an architectural registration board; and by phone at (512) 305-8544; by fax at (512) 305-8900; by e-mail to gail. · meet established fi nancial requirements. [email protected] or [email protected], or by mail at P.O.P.O. Box As of March 2004, TBAE uses the gross adjusted income on the 12337, Austin, Texas, 78711-2337. applicant’s federal tax return to determine fi nancial need. For people fi ling All applications must be completed and mailed to TBAE Scholarship, individually, the maximum gross adjusted income is $38,988; for those who P.O. Box 12337, Austin, Texas, 78711-2337.

J U N E 2 0 0 4 CHECKSET 5 CONVENTION MEMO Lineup of Speakers Announced for Convention

The 65th Annual TSA Convention and Design ing awards from the American Institute of Products & Ideas Expo is shaping up into an Architects, American Planning Association, event that will truly break new ground. The con- Municipal Art Society, the New York Press vention facilities (the newly expanded George Club, and the City Club of New York. A R. Brown Convention Center and the recently native resident of New York City, Gratz was opened Hilton Americas-Houston) will provide appointed to the New York City Landmarks state-of-the-art meeting and exhibit space along Preservation Commission by Mayor Michael with gracious guest accommodations. With Bloomberg in February 2003. Roberta Brandes Gratz the Center and the Hilton located just blocks Susan A. Maxman, FAIA, will speak in from Houston’s new light rail system, many the afternoon. Principal of Susan Maxman & convention activities are being planned to take Partners Architects, a fi fteen-person fi rm in GAYLE PICKERING advantage of easy-to-use and affordable rail Philadelphia, she served as the fi rst female TSA Senior Director transportation. president of the American Institute of Archi- Austin “To Offer More than Anyone Could Do” is the tects in 1993. With environmentally sensitive planning mantra of the 2004 TSA Convention design a priority of her AIA administration, Committee, chaired by Ronda Wang, AIA. When the brochure hits the mail she encouraged design professionals and in July and online registration begins, everyone will agree the committee the public to recognize the importance and stayed true to its objectives. economic viability of sustainable design. The Convention Futures Committee has broken new ground as well. Through her fi rm and professional involve- Chaired by John Nyfeler, FAIA, the committee invited and received accep- ment, she works closely with public and Susan A. Maxman, FAIA tance from two well qualifi ed and sought-after keynote speakers to anchor private sectors to promote that same agenda. the convention. Their presentations on Friday, October 22, will mark the fi rst One of her fi rm’s recent projects – the Cusano Environmental Education time both general session presenters are female. Center that is set within an urban wildlife preserve in Philadelphia – has Roberta Brandes Gratz will lead off on Friday morning. An award-winning received many awards for its cutting-edge environmental sustainability. A journalist, she is a critic on urban development issues and author of The frequent lecturer and juror for environmental programs, Maxman’s serves Living City: Thinking Small in a Big Way and Cities Back from the Edge: on several boards, including the Alliance to Save Energy and the American New Life for Downtown. Gratz is a former reporter for The New York Post and Architectural Foundation. articles have appeared in The Wall Street Journal, New York Times Magazine, Many TSA members are volunteering many hours to plan a convention The Nation, Planning Magazine, Planning Commissioners Journal, and other that will mirror its theme and the host city. If you haven’t attended a TSA publications. She lectures frequently across the U.S., in Great Britain, and convention, perhaps it’s time for you to break new ground for yourself, your in Europe and consults on urban revitalization issues. She has received fel- fi rm, and your profession. Join your colleagues in Houston on October 21-23 lowships from the National Endowment for the Arts, New York State Council for what will certainly prove to be a ground-breaking convention. on the Arts, Surdna Foundation and Rockefeller Brothers Fund, and writ-

RUSSIAN ARCHITECTS VISIT DALLAS Eleven Russian architects recently visited Dallas for a 24-day immer- sion program that introduced them to how several local architecture fi rms conduct operations and plan business strategies. The visit, from April 29 to May 22, was sponsored by the San Francisco-based Center for Citizen Initiatives and the group, along with two translators, were hosted by the Preston Center Rotary Club (with Craig Beale, FAIA, and Tom Amis, both architect members of the club, serving as personal hosts). The group’s itinerary included meetings with architects at HKS, Perkins & Will, Cunningham Architects, Jonathon Bailey Associates, Beck Construction, and the Lauck Group. (photo courtesy HKS)

6 C H E C K S E T J U N E 2 0 0 4 BOARD REPORT BRIEFS

George J. Mann, the Ronald L. Skaggs Endowed Professor of Health Facilities Design at Texas Board Focuses on Advocacy A&M University’s College of Architecture, received the 2003 Bush Excellence Award for Faculty in Public Service.The award recognizes individuals for outstanding contributions to public service Deciding TSA’s preferred response to the question “how can we help ensure by demonstrating a sustained, long-term application of disciplinary expertise. the best and fairest way to fund public education adequately” was the focus of the Society’s 2004 Spring Meeting held in Lubbock on April 30 Jim Sealy, FAIA, of Dallas is the new chair of the Building Seismic Safety Council, a committee and May 1. of the National Institute of Building Sciences in Washington, D.C. Held in conjunction with Texas Tech University’s College of Architecture’s 75th anniversary, the two-day meeting attracted over 100 members, guests, Cole Smith Sr., FAIA, along with his wife, Sherry Hayslip, an interior designer, have received and staff. Throughout the gathering, however, discussions focused on a Gold Award For Design Excellence in the 2003 ADEX Awards sponsored by Design Journal increasing the effectiveness of TSA’s advocacy voice, especially during the magazine. The award recognized the team for a custom-designed coffee table. current Special Session of the Texas Legislature. (See related article on p. 4.) The answer again turned out to be, as it was at the Winter Board meeting Texas A&M architecture professor David Woodcock, FAIA, received the 2003 Harley J. McKee in Corpus Christi, to support a state income tax as the best way to support Award, the highest honor from the Association of Preservation Technology. He was cited for his Texas’ public education system without unduly, and negatively, impacting “leadership as an educator and mentor to several generations of historic preservationists, and the way architecture is practiced in the state, and especially putting Texas for his years of dedicated service to APT.” fi rms at a competitive disadvantage with out-of-state fi rms. David Lancaster, Hon. AIA, TSA Executive Vice President The Columbarium and Labyrinth Courtyard at St. Joseph Catholic Church in Richardson received an Honor Award in the 2003 Faith & Forum Religious Architecture Award program. The project architect was Landry & Landry Architects & Planners of Dallas, with Good Fulton & Farrell THANKS TO of Dallas serving as architect of record.

Lew~s For the twelfth year in a row, Parkhill, Smith & Cooper is rated among the Engineering News- ITfle Record’s “Top 500 Design Firms” in the nation and 31st among Texas fi rms. I9cooslruc 00, line University of Houston architecture student Bryant Alcantara’s Inner City Interfaith Chapel won www.leelewis.com top honors in the inaugural edition of the Interfaith Sacred Space International Competition. for sponsoring the Friday evening event at the Spring Board Meeting in Lubbock. The Metro Apartment Community by Houston-based fi rm Meeks + Partners is a fi nalist for two 2004 Pillars of the Industry Awards at the National Association of Homebuilders’ (NAHB) annual multifamily conference. “CULTURES” CONTINUED FROM PAGE 1 Also selected as fi nalists in NAHB’s Pillars of the Industry Awards are two projects by EDI Archi- nication; constructive critique; healthy lifestyles; balance between studio tecture of Houston, Jefferson at Salem Station, Mass., and Jefferson at Aberdeen Station, N.J. and non-studio courses; emphasis on the value of time; an understanding on the ethical, social, political, and economic forces that impact design; clear R. Joe McGuire, TSA’s director of accounting, will be included in the 2004-2005 edition of the expectations and objectives for learning; and environment that respects and National Register’s Who’s Who in Executives & Professionals. promotes diversity; successful and clear methods of student assessment; and innovation in creating alternative teaching and learning methodologies.” Daniel Stephen Hart of Odessa has been appointed to serve as the public architect member I’m pleased that the AIA has included these recommendations in its on the joint committee of the Texas Board of Architectural Examiners and the Texas Board of proposed Educational Policies. [Written by the AIA Board’s Education Com- Professional Engineers. mittee, the draft policy statement is available online at www.aia.org/gov/ policy/education_policies.asp for public review. I urge all TSA members to The deadline is July 15 for the Texas Forestry Association’s Excellence in Woodke Designyline Awards. only don't print. review this document and offer comments.] Surely it’s no coincidence that Entries must be Texas-based wood projects completed within the past fi ve years. Call (936) the AIA also has aligned its policy therein on “practice culture,” espousing 632-TREE for more information, the same fi ve values specifi ed by the AIAS task force. The strategic think- ing is clear: preach what we practice and practice what we preach. What a magnifi cent opportunity for the furnace of practice to be fueled by young professionals armed with such skills—not only the design ability and critical thinking that is the hallmark of the discipline, but the leadership posture and will to engage the profession and society. Concurrently, practice must perform in concert with these values. We can expect optimum results of integration with the academy if we hold ourselves to equal standards. Examine your practice; how do you integrate these values in to your work? They represent a high-value platform for life-long learning and community leadership, not just for the established professional, but the emerging professional as well. Dare to lead.

J U N E 2 0 0 4 CHECKSET 7 PROFESSIONAL INSIGHT Succession Plan Essential for Firm’s Long-term Health

Having been in business since 1969 as founder My concept for funding the buyout was quite simple. I rationalized that and principal stockholder of Hermes Architects the fi rm with two principals generated about $10 million dollars in revenue in Houston, a few years ago I became concerned each year and maintained a substantial net profi t from these operations. So, I about the survival of the fi rm after my retire- expected that if we added fi ve new principals over a six-year period we might ment. I had seen many fi rms like mine fragment increase our revenue to $17 million or $18 million. If we maintained the after the primary principal or founder died or same level of profi t, I would give the new principals credit for that additional retired, and I have come to learn that planning profi t and bonus them the profi t to buy out my stock over the six years. is essential for a fi rm’s long-term vitality. Proceeding on that assumption, we selected the fi ve new principals, had By 1995 my fi rm had grown to almost 100 the documents drawn, and established the annual valuation method. The architects and staff. Many of them had been outcome was exactly as predicted. I received the full value of my 75 percent with the fi rm for 15 to 20 years and I felt they ownership on the schedule set out in the original plan. In addition, the last LEROY HERMES deserved to know what their future with the buyout was made as an ESOP (employee stock ownership plan) which the Houston fi rm would be. Ranging from 40 to 50 years fi rm could write off 100 percent. (There were no capitol gains on the fi nal of age, I knew they were the next generation phase of the buyout because the stock’s value had been established over of the leadership for Hermes Architects. They were all accomplished archi- the six-year period.) tects who as a unit made an excellent team, and by assessing their various To further ensure the success of the plan, the fi rm retained a business individual strengths and weaknesses I also knew I would come to learn the consultant who worked for one year to help us develop management proce- value of my fi rm. dures, document roles and responsibilities for the new principals, and devise I performed an extensive investigation of how to develop and implement problem-solving methods. a succession plan. I met with numerous consultants who specialize in the The entire experience was one of the most rewarding of my career and one business, spoke to principals at other fi rms who have installed such a plan, I would like to share with other architects who are wondering how they can and conferred with attorneys and accountants who had experience in these achieve a succession of their fi rm. We have only three options: 1) sell the fi rm matters. Eventually, I developed a concept for how I thought a plan could to an outsider, 2) sell the fi rm to our employees, or 3) go out of business. I be funded and wrote an extensive document that explained how and why I believe our employees deserve the best option, and in my opinion that is to thought a succession plan was important. have the opportunity to inherit what they have helped to create. The process Once I identifi ed a company that specialized in succession planning for is also a great motivator to others in the fi rm because they can see that they professional service fi rms, I asked for help in identifying, through confi dential will be next in line if the succession continues generation after generation. interviews, those individuals who should be fi rst in line for ownership. I also At Hermes Architects, the employee retention rate has increased dramatically asked for assistance with implementation of the succession plan. Valuation in the last few years because the new principals are closer to the people in of the fi rm was of utmost importance to the buyout. As all architects know, the fi rm and because the ESOP has created a vehicle to ownership available valuation of architectural fi rms is quite different than for fi rms that have large early in the career of all members of the fi rm. assets. Professional service fi rms have people, retained earnings, some real property, but mostly “good will and reputation.” Leroy Hermes can be reached at [email protected].

FROM THE ARCHIVES 50 Years Ago in Texas Architect

The following is excerpted from the May and June 1954 editions of Texas TA Quotation in Memo Architect. At that time, TSA published TA as a 14-page newsletter each The current issue of Memo quotes as follows from a survey article in the month. In the 1970s CheckSet was created to focus on TSA news while Texas May Texas Architect: Architect was retooled to cover broader issues of the profession. “Texas Reports Increased Use of Architects. Preliminary fi ndings in a statewide survey being conducted by the Texas Society of Architects reveal TSA Stamps Available a defi nite trend toward greater use of architects in the following fi elds: 1. The beautiful TSA stamps honoring the Texas Public Schools Centennial have residential—for both new homes and remodeling work; 2. new or remodeled been widely applauded throughout the State, and many requests have been structures for small to medium sized business fi rms which in the past had received for additional stamps. John Flowers, Executive Director, has ordered not utilized architectural services; 3. development housing for low-middle an additional supply, and they can be secured at $2.50 per thousand. Every and middle priced homes; 4. warehouses and other subsidiary buildings for letter from every architect’s offi ce should use this excellent public relations large companies that had employed architects for major projects but not for device as a means of drawing favorable attention to our organization. minor ones; 5. building and remodeling programs for smaller school districts; It is also recommended that architects urge their business friends to 6. building programs for smaller church groups. utilize the same stamps as it is desired that these attractive insignia receive TSA gives much of the credit for this favorable trend to an increased as wide a currency as possible. public recognition and understanding of the architects services – in other words – good public relations.”

8 C H E C K S E T J U N E 2 0 0 4 MEMBER SPOTLIGHT Retired Architect’s Bronze Lion Honors Afghanistan

Marjan, the lion that survived a grenade blast at the Kabul Zoo, became an international symbol of man’s savagery after he was attacked in his cage during the Taliban’s reign over the Afghanistan capital in the early 1990s. The image of the blinded and mangled Marjan appeared in news reports worldwide. Among the many people struck by that tragic image was architect and sculptor Bob Coffee, FAIA, of Austin. Moved by the reports of Marjan’s suffering and survival, Coffee has immortalized the lion in a three-quarter life-sized statue. After offering to donate an animal bronze to the zoo, Coffee received a request for a statue of Marjan, the zoo’s favorite and a symbol of Afghanistan’s courage under the strife of war. He prepared several study models of the proposed statue for approval by the International Zoo Society and sent one as a gift to Afghan President Hamid Karzai. Upon completion of the sculpture in November, Coffee exhibited his artwork at the Rockport Center for the Arts. In March, the bronze came to Austin’s Umlauf Sculpture Garden where Coffee lectured on its creation. On March 26, it was delivered to the North Carolina Zoo – the collection site for donations to the Kabul Zoo – for a three-month exhibit. This summer, the Marjan bronze will be unveiled in Afghanistan at the dedication of the Kabul Zoo’s reconstruction. [Marjan died in January 2002. Believed to be more than 25 years old, his death was attributed to a combination of liver failure and old age. News reports in the early 1990s stated that Marjan was attacked following an incident in which an Afghan fi ghter jumped into Marjan’s cage, apparently Coffee with the fi nished sculpture of Marjan. trying to prove his courage. The lion pounced on the man and bit off his arm. The man later died in a hospital. Seeking revenge, a friend of the dead man tossed a grenade into the lion’s cage. The blast tore into Marjan’s legs and blew off one side of his muzzle.] “Architecture is sculpture on a vast scale,” he said. “It is sculpting Coffee retired after 35 years of varied practice as a partner in Coffee, spaces, shaping masses, and developing detail. Sculpture is a bit different. Crier & Schneck, Architects and Planners. He served on national and state The architect needs a client to do work. The sculptor, like any artist, doesn’t AIA committees and was president of AIA Austin. He was elected to the AIA’s necessarily need a client but if they don’t develop some, they end up with a College of Fellows in 1995. lot of expensive hardware lying around.” Ironically, Coffee’s architectural thesis was the design of a zoo for Austin Coffee’s wildlife bronzes refl ect an intuitive knowledge of animals gained in Barton Creek Canyon. “I always wanted to be a zoo architect but that didn’t over years of close observation, including photo trips to Alaska and Africa. happen,” he says. Coffee began sculpting in 1970 to recreate old hardware His work has traveled nationwide and is in galleries in Austin, Marathon, and for historic buildings his fi rm was restoring. Sculpture remained a hobby for Rockport, as well as in Ruidoso, Santa Fe, and Taos, New Mexico. He also more than three decades, but since his retirement he now considers himself has created large commissioned pieces for clients in Austin and Dallas. “up-and-coming.” Brian Fee, TSA editorial intern

2004 TexasTexas Architect Cover Contest

Here’s your chance to be featured on the cover of Texas Architect! We are holding a competition for the cover of the September/October issue of Texas Architect, featuring coverage of the 2004 TSA Design Awards. Entries may be in any medium (drawing, painting, photography, digital art) and should refl ect the spirit of the magazine and the annual design awards competition. Entries are due June 21, 2004. Please contact Adam Fortner ([email protected]) for the full contest information and rules.

J U N E 2 0 0 4 CHECKSETC H E C K S E T 9 “ADA” CONTINUED FROM PAGE 1 entities; and Title III prohibits discrimination with regard to access to com- another disabled access statute (the Fair Housing Amendments Act of 1988) mercial facilities. The text of each title follows the same basic structure: each that has language very similar to that found in Title III of the ADA. starts with a provision with defi nitions, followed by a rule of liability prohibit- This debate has centered on two questions: First, does the language of ing discrimination by certain individuals or entities, followed by provisions one section of the ADA (Section 302, which creates liability for owners and describing what actions constitute discrimination prohibited under the title.) operators of public accommodations) limit another section (Section 303, Based on this structure, the court concluded that Section 302 is meant to “set which generally establishes that failure to design and construct an accessible forth a rule of liability that prohibits ‘discrimination’ against the disabled by public accommodation or commercial facility is impermissible discrimina- certain individuals” and that Section 303 is meant to “set forth what actions tion)? The Ninth Circuit says “yes”; the Eighth Circuit says “no”; and there by these individuals constitute the prohibited ‘discrimination.’” are a number of U.S. district court decisions going both ways. Second, since The appellants in Lonberg had argued that, because Section 302 only Section 303 creates liability for one who designs and constructs inaccessible applies to “public accommodations” and Section 303 applies to both “public facilities, does it apply where one either designs or constructs but does not accommodations” and “commercial facilities,” application of Section 302’s do both? While no circuit court decision has answered this question, the owner/operator limitation to Section 303 would create a gap in ADA cover- district court decisions are split. age that Congress could not have intended. Specifi cally, they argued that If architects and contractors are potentially liable, the consequences are limiting liability under Section 303(a) to owners and operators would leave profound. Such liability would apply regardless of the terms of their contracts no one liable for failure to design and construct commercial facilities in with owners and regardless of fault. If they are found liable, architects and accordance with ADA accessibility requirements. However, the court rejected contractors could be compelled to correct inaccessible facilities themselves, this argument. potentially without pay. In addition, if the federal government sues, the The court noted that other courts had dealt with this perceived problem in architects and contractors could be subject to monetary damages and civil two different ways. The fi rst approach, taken by the Eighth Circuit and several penalties of up to $50,000 for a fi rst violation and up to $100,000 for any district courts, extended “design and construct” liability beyond the limita- subsequent violations. Finally, many states have their own disabled access tions in Section 302 to anyone possessing a signifi cant degree of control over laws similar to the ADA, and some of these laws provide for additional the fi nal design and construction of the facility. The Ninth Circuit declined remedies, including recovery of damages, against violators; therefore, archi- to follow this approach, viewing the Eighth Circuit’s position as “creat[ing] tects and contractors in those states could face liability for these additional a category of liability found nowhere in the text or legislative history of the remedies as well if courts in those states were to choose to follow federal ADA.” The court instead adopted a second approach taken by three district decisions assessing architects and contractors with liability. courts, construing the “general rule” in Section 302 as applying just to owners and operators of either public accommodations or commercial facilities. Relevant ADA Language The court concluded that this approach is more logical, better conforms to Sections 302 and 303 are the two provisions in Title III of the ADA that could the general structure of the ADA, and avoids creating liability without any create architect and contractor liability. Section 302 provides: No individual meaningful remedy (i.e., injunctive relief against a party that has no control shall be discriminated against on the basis of disability in the full and equal over the facility and so is powerless to correct any access problems). enjoyment of the goods, services, facilities, privileges, advantages, or accom- modations of any place of public accommodation by any person who owns, The Eighth Circuit’s Position leases (or leases to), or operates a place of public accommodation. Section The Eighth Circuit Court of Appeals (based in St. Louis) and three district 303 provides, in relevant part: [A]s applied to public accommodations and courts have reached a different conclusion, which the Ninth Circuit directly commercial facilities, discrimination for purposes of section 302 includes rejected in Lonberg. The Eighth Circuit and the district courts have held (1) a failure to design and construct facilities for fi rst occupancy … that are that parties such as architects and contractors are potentially liable under readily accessible to and usable by individuals with disabilities … and (2) with Title III of the ADA because, in their view, Section 302 does not limit Sec- respect to [alterations of] a facility … a failure to make alterations in such tion 303; they believe that parties which do not own, lease, or operate an a manner that, to the maximum extent feasible, the altered portions of the inaccessible facility may be held liable for failure to design and construct facility are readily accessible to and usable by individuals with disabilities. accessible facilities. The Eighth Circuit opinion in another case (United States v. Days Inns The Ninth Circuit’s Position of America, Inc., a k a Days Inns III) predates Lonberg by three years. In The Ninth Circuit Court of Appeals (based in San Francisco) and three district Days Inn III, the federal government sued a hotel franchisor, arguing that it courts have held that parties must own, lease, or operate a facility to be sub- should be held liable for ADA violations in one of its franchised hotels. The ject to “design and construct” liability under the ADA. In one case (Lonberg district court granted the franchisor’s motion for summary judgment on the v. Sanborn Theatres, Inc.), wheelchair-bound patrons sued a movie theater ground that it did not design, construct, own or operate the hotel. The Eighth and the architect that designed it, alleging that the theater was inaccessible Circuit reversed, holding that a party need not own or operate a facility to be in violation of the ADA. The architect moved for summary judgment on the liable under the ADA and remanding the case for trial on the disputed issue grounds that it could not be liable under the ADA because (a) it neither owned of whether the franchisor designed or built the hotel. nor operated the theater and (b) it designed but did not construct the theater. The Eighth Circuit in Days Inns III focused on the fact that, while Section The district court granted the motion on the second ground. 303 creates “design and construct” liability for both public accommodations The Ninth Circuit affi rmed, but it relied on the fi rst (rather than the second) and commercial facilities, Section 302 only prohibits discrimination with ground of the architect’s motion, holding that only owners or operators of regard to public accommodations. Both “public accommodation” and “com- a facility can be liable under Title III of the ADA. The Ninth Circuit based mercial facilities” are defi ned in Title III’s Section 301. While the defi nitions its holding in Lonberg on the basic structure of the ADA. (Title I prohibits of “commercial facilities” and “public accommodation” are both extremely discrimination in employment; Title II prohibits discrimination by public broad and cover similar entities, the defi nition of “commercial facilities” is

1 0 C H E C K S E T J U N E 2 0 0 4 technically broader. Section 301 defi nes “commercial facilities” as “nonresi- for ADA compliance among themselves by contract. Landlords and tenants dential” facilities “whose operations will affect commerce”; it defi nes places may allocate this responsibility. Whether an architect or contractor will of “public accommodation” as private entities included on an expansive be liable to an owner or operator for ADA violations will depend fi rst upon list, so long as they affect commerce. Certain commercial facilities, such the terms of their contract regarding who is responsible for ensuring ADA as factories or some offi ces, would not qualify as public accommodations compliance and regarding indemnifi cation. If there are no such terms in the because they are not listed in Section 301. parties’ contract, or if the parties are not in contractual privity, the appli- The Eighth Circuit rejected the franchisor’s argument that Section 302’s cable jurisdiction’s law regarding extra-contractual indemnity (also known limitation of liability to owners and operators “clarifi es the parties who may be as equitable indemnity) may determine whether an owner or operator will liable” for non-compliant design and construction under Section 303. In the be entitled to indemnifi cation from an architect or contractor. To the extent court’s view, the franchisor’s interpretation “would improperly create a gap in it may be negligent to design or build non-compliant facilities, the architect coverage that Congress did not intend” by omitting commercial facilities (as or contractor may owe indemnity. opposed to public accommodations) from design and construct liability. The franchisor argued that the court should remedy this gap by reading Section Conclusion 302 to apply not only to public accommodations but also to commercial There is a strong argument that the Ninth Circuit position is correct and that facilities. The court rejected this argument, concluding that such a reading architects or contractors may not be held statutorily liable for designing or would violate the plain language of Section 302. building work that does not comply with ADA requirements. However, there is Having concluded that Section 302 does not limit and defi ne who may a split of authority, and potential exposure does exist, particularly in the Eighth be liable under Section 303, the Eighth Circuit then evaluated Section 303 Circuit and jurisdictions that have followed its rule. Moreover, no matter where on its own terms. The court noted that Section 303 “is silent with respect a project is located, architects and contractors may be held indirectly liable to who is liable.” It then concluded that any party possessing a signifi cant under contractual or equitable indemnity principles. Therefore, though the degree of control over the fi nal design and construction of a facility may be architect or contractor may not be exposed to statutory liability, their clients liable under Section 303. are, and the architect or contractor should know ADA access requirements well. In order to avoid or at least limit their liability on an indemnity theory, Plain Language architects and contractors should be certain they disclose ADA responsibility Title III of the ADA is by no means a model of clarity; if it were, there would in their contracts, and limit their indemnity exposure if they can. be no disagreements in the courts. However, the most reasonable reading of Title III as a whole is that of the Ninth Circuit, i.e., that Title III does not Aaron Silberman practices law with Rogers Joseph O’Donnell & Phillips in make architects and contractors potentially liable for designing or construct- San Francisco. He can be reached at [email protected]. ing inaccessible facilities. The plain language of Section 303 states that the section is meant to set forth examples of “discrimination for purposes of” Section 302. The Eighth Circuit’s reasoning in Days Inn III ignores this cross-reference. On their faces, Section 303 does not defi ne who is or is not to be held liable for the discrimination under Title III, and Section 302 does. Because Section 302 limits potentially liable entities to owners and operators of non-compliant facilities, Section 303, in defi ning the acts creating liability, cannot reasonably be read to extend potential liability to other entities, such as architects and contractors, who neither own nor operate facilities. The second issue courts have considered relevant to the potential ADA liability of architects and contractors is whether liability would extend to par- ties who design or construct a facility, but do not do both. This issue arises because plaintiffs and the United States have argued in a number of cases, with varying success, that the unambiguous conjunctive phrase (“failure to design and construct”) in Section 303 is meant to be disjunctive.

Indirect Liability Thus far, this article has focused on architect and contractor statutory liability > Aluminum Space Frames > Large Span Roofs under the ADA. It is important to note, however, that architects and contrac- > Vertical Walls > Integral Glazing Systems tors may also be held liable for failure to design and/or build compliant facili- Offering ideal design solutions for > Sports Arenas > Airport Terminals ties based on contract or tort. Thus, even if architects and contractors may > Convention Centers & Assembly Facilities > Churches > Libraries not be held liable directly under the ADA, they still may be indirectly liable > Museums & a host of other applications if their contracts mandate ADA compliant work, or if they were negligent in failing to design or construct compliant facilities. There is nothing in the ADA, or any cases interpreting it, that prevents an owner or operator held liable for ADA violations from seeking indemnity ARCHITECTURAL SYSTEMS from its architect or contractor for its costs in correcting violations and paying damages and penalties, based either on an express contractual provision or a 498 Loop 336 East l Conroe, Texas 77301 Ph: 936-539-1747 l Fax: 936-539-5355 l Toll Free: 1-800-880-3663 theory of negligence. In other contexts, regulations implementing and cases CONSERVATEK ARCHITECTURALwww.conservatek.com SYSTEMS interpreting the ADA have recognized that entities may allocate responsibility

J U N E 2 0 0 4 CHECKSET 11 Texas Society of Architects PRESORTED STANDARD U.S. POSTAGE 816 Congress Avenue #970 Austin, Texas 78701 PAID A U S T I N , T X CHANGE SERVICE REQUESTED PERMIT NO. 2772